Chapter 9

Conviction evidence

Civil judgments as evidence in criminal proceedings

9.14Section 50 provides:

50 Civil judgment as evidence in civil or criminal proceedings

(1) Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in a criminal proceeding or another civil proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given.(2) This section does not affect the operation of—

(a) a judgment in rem; or(b) the law relating to res judicata or issue estoppel; or(c) the law relating to an action on, or the enforcement of, a judgment.

9.15The effect of this section is that a finding of fact in an earlier civil proceeding is inadmissible in a later proceeding to prove the existence of a fact in issue. The definition of proceeding in s 4 is:

proceeding means—

(a) a proceeding conducted by a court; and(b) any interlocutory or other application to a court connected with that proceeding

9.16The definition of court includes the Supreme Court, the Court of Appeal, the High Court and any District Court. It has been suggested to us that the definition of “court” and “proceeding” could mean that a finding of fact in a tribunal would not engage s 50. Admissibility would therefore be determined by reference to other provisions in the Act. In Hao v Minister of Internal Affairs, the High Court held that a decision of the Administrative Appeals Tribunal of Australia was a “public document” under s 138 and admissible as to the truth of its contents.606 The judgment does not refer to s 50, a fact which Adams on Criminal Law describes thus:607

Hugh Williams J did not refer to s 50, but he was probably correct not to do so. Section 50 refers only to a finding of fact in a civil proceeding. Under s 4, a “proceeding” includes only a proceeding conducted by a court, as opposed to a tribunal. The curious effect of this is that it may be arguable that a finding of fact by a tribunal (not governed by s 50) can be given more effect in a subsequent proceeding than a finding by a court. This is likely an example where the common law would be applied under s 12 (rendering a tribunal’s finding of fact inadmissible in a subsequent proceeding).

9.17We agree that it would be an odd result that a finding of fact by a tribunal could be afforded more weight than one made by a court. If there were to be any differentiation, arguably it should be the reverse as a court’s finding is decided on the basis of evidence admitted under the Act. If a fact that was determined by a tribunal is relevant to a criminal or civil proceeding, that fact should be independently proved.

R19 We recommend extending the application of s 50 so that a judgment or finding of fact made by a tribunal is not admissible to prove the existence of a fact that was in issue in the tribunal.